The Children’s Online Privacy Protection Act [“COPPA”] is a relatively simple law clouded by complex regulatory requirements. The complexity of the regulations, collectively known as the COPPA Rule, can make it easy to misstep when seeking to comply with the law. This is particularly true when contemplating what COPPA compliance obligations arise when parents post personal information online regarding a child under 13.
Mary is a divorced mother of two children. Both children are under 13 years old. Mary is on Facebook one day and notices pictures of her children posted on another page by Bob, her ex-husband. Mary demands Facebook remove the images of the children.
What COPPA obligations does Facebook have in this situation?
The answer is relatively straightforward. COPPA only applies to cases where the child posts personal information on an online platform. In our example, the images have been posted by the father of the child. Facebook has no obligation under COPPA to remove the photographs. COPPA just does not apply.
Let’s return to our example, but add a unique twist. Instead of Bob posting the images to his account, Carol is the party posting the photos. Carol is Bob’s new girlfriend. She interacts with the kids when Bob has custody. Mary is furious and complains to Facebook.
Must Facebook remove the images pursuant to a COPPA obligation?
No such obligations exist. Again, the critical factor is who posted the photograph to the account – an adult. When an adult provides the personal information for a child, COPPA simply does not apply.
Mary is at home chatting with a friend about how furious she is with Carol for posting images of the children on Facebook. There is a knock at the door. An FBI agent asks to speak with Mary. It turns out images of Mary’s children were found posted on a child pornography website. It appears Bob may have uploaded the pictures.
Can Mary, the FTC or FBI pursue the child porn website for COPPA violations? No. The subject matter of the website is not relevant to the analysis if a person other than a child posts the content.
Before you send me outraged email messages, keep in mind that Bob and the child pornography website owner will be charged with numerous crimes under other laws including, but not limited to:
- 18 U.S.C. 2251 – Sexual Exploitation of Children
- 18 U.S.C. 2251A – Selling and Buying of Children
- 18 U.S.C. 2252 – Possession, distribution and receipt of child pornography
The website will also immediately be seized and removed from the Internet. The perpetrators will not “get away with it” in this situation because charges cannot be brought under COPPA.
Why use the scenario then? Many commentators argue COPPA is designed to protect young children from predators online. While there can be a certain amount of indirect protection, the reality is COPPA is primarily designed to provide parents with a means to control the personal information collected from their children. The law should be viewed accordingly by online service providers.
COPPA and the accompanying COPPA Rule offer plenty of legal complexities. Before diving into a COPPA analysis, however, one should ask basic foundational questions to make a determination as to whether the law even applies to a particular situation. Often the analysis can boil down to something as simple as determining who is posting the content in question.
Questions regarding COPPA? Contact me for a no-obligation consultation.
Richard A. Chapo, Esq.